M v F

JurisdictionEngland & Wales
JudgeSir James Munby
Judgment Date13 April 2021
Neutral Citation[2021] EWFC 32
Date13 April 2021
Docket NumberCase No: ZC19P04101
CourtFamily Court

In the matter of C (A Child)

Between:
M
Applicant
and
F
Respondent

[2021] EWFC 32

Before:

Sir James Munby

(Sitting as a Judge of the High Court)

Case No: ZC19P04101

IN THE FAMILY COURT

At the Royal Courts of Justice (sitting remotely)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Stewart Leech QC and Ms Petra Teacher (instructed by Sears Tooth) for the applicant (C's mother)

Mr Tim Amos QC and Mr Deepak Nagpal QC (instructed by Family Law in Partnership) for the respondent (C's father)

Hearing dates: 24–26 March 2021

Judgment Approved by the court for handing down

Sir James Munby
1

This is an application brought by a mother (M) against the father (F) under Schedule 1 to the Children Act 1989 in relation to their daughter (C). M, who is 39, was born in Russia and is a citizen of Finland. Her mother and step-father live in France, where C was born in August 2014. F, who is 59, was born in Sweden and is resident in Monaco. I am concerned with a preliminary issue as to jurisdiction: does the English court have jurisdiction to hear M's application?

2

M's application was issued on 26 November 2019. A few days earlier, F had made an application in Monaco; it was dated 18 November 2019 and issued on 21 November 2019. M's English solicitors had previously sent F letters before action. He was evasive when questioned before me as to his receipt of these letters but the fact is that a letter sent by his English solicitors to M's English solicitors before he issued his proceedings in Monaco makes clear that he was aware of the correspondence. Indeed, in his application to the court in Monaco F pleaded that on 24 October 2019 he had received a letter from M's English solicitors threatening proceedings in England. It is reasonable to infer in the circumstances that his application in Monaco was a preemptive strike.

3

By his application in Monaco (I quote from the English translation), F sought blood testing to establish whether or not he is C's father and, pending the results of this test, continuation of maintenance in the sum of €2,225 per month currently being paid by him to M. He reserved the right to bring civil proceedings “for moral or financial prejudice”: (i) if C is his child, in the sum of €130,000 “for the moral prejudice he suffered” as “the result of a theft of sperm or even a breach of trust on the part of” M; (ii) if C is not his child, “reimbursement of the entirety of the sums paid (€127,000 of pension paid to this day) or that could still be paid (besides €35,000 of moral prejudice)”; and (iii) in any case, “compensation of the moral and financial prejudice suffered because of [M's] fraudulent schemes, who … has relocated to England for the purposes of the case in order to manipulate the criteria of jurisdiction and applicable law and obtain what she had failed to achieve by threat”, compensation being claimed in the sum of €100,000. Judging by what he told me in evidence the basis of F's claim at (i) is his assertions that M told him that she was using a contraceptive, that he always practised coitus interruptus and, he insinuates, that she was somehow responsible for introducing his sperm into her vagina. Another explanation may be fecundation ab extra: see Russell v Russell [1924] AC 687, 721, per Lord Dunedin.

4

In accordance with directions given by the court in Monaco, DNA testing took place which established in September 2020 that C is, indeed, F's child, a fact that F now accepts.

5

On 18 March 2021 the court in Monaco gave judgment holding that it had jurisdiction in matters relating to C's parentage and that it had jurisdiction to decide the subsidiary issue of child maintenance (explaining that “This extension of the competence of the Court of First Instance for claims relating to a maintenance obligation, whenever it is called upon to rule on the primary issue of parentage, can be explained by the desire for resolution of the dispute to be concentrated in the hands of a single judge in the interest of the efficient management of justice”). The court quoted Article 53 of the Code of Private International Law (which states that “the maintenance obligation between ascendants and descendants is governed by the law of the State on whose territory the party to whom the obligation is owed is domiciled”), noted the dispute as to whether M is for this purpose domiciled in France or the United Kingdom, and gave directions for the resolution of that dispute by the court in order to determine which law applies to the claim.

6

I should add, though nothing turns on it for present purposes, that on 29 December 2020 F issued proceedings against M in the court in Grasse in France for a ruling in relation to child maintenance. As explained on F's behalf by Mr Amos, the French proceedings are contingent and protective, to guard against the possibility of M's issuing fresh proceedings in England following a determination that she was not habitually resident in England as at 26 November 2019.

The Maintenance Regulation

7

Given that M's application was issued in November 2019, jurisdiction continues to be governed, despite the United Kingdom's subsequent departure from the European Union, by the Maintenance Regulation, Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations: see the European Union (Withdrawal Agreement) Act 2020 and Part 4 of the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/519) as amended by the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (SI 2020/1574).

8

For present purposes the material provisions of the Maintenance Regulation are recital (15) and Articles 2, 3, 5, 12 and 13. Recital (15) is in the following terms:

“In order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union, the rules on jurisdiction as they result from Regulation (EC) No 44/2001 should be adapted. The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. This Regulation should therefore determine the cases in which a court in a Member State may exercise subsidiary jurisdiction.”

9

Article 2.1.10 provides that:

“For the purposes of this Regulation …

(10) the term ‘creditor’ shall mean any individual to whom maintenance is owed or is alleged to be owed.”

(11) the term ‘debtor’ shall mean any individual who owes or who is alleged to owe maintenance.”

10

Article 3 provides that:

“In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a) the court for the place where the defendant is habitually resident, or

(b) the court for the place where the creditor is habitually resident, or

(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or

(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.”

11

Article 5 provides that:

“Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction.”

12

Article 12 (headed “Lis pendens”) provides that:

“1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2. Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”

13

Article 13 (headed “Related actions”) provides that:

“1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.

2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

14

For the purpose of the Maintenance Regulation, “maintenance creditor” includes an applicant whose maintenance claim has yet to be adjudged: Farrell v Long (Case C-295/95) [1997] QB 842, [1998] 1 FLR 559, para 27, M v W (Application After New Zealand Financial Agreement) [2014] EWHC 925 (Fam); [2015] 1 FLR 465, paras 34, 39.

The Maintenance Regulation: the issue

15

Monaco is not, of course, a member of the European Union. That gives rise to an important submission by Mr...

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